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whether there would be evidence of waiver, or anything of that kind
there is no finding that they had assented to the underletting by Mr.
Brown, and there is no finding, nor is it consistent with the facts, that
they were in receipt of the sub-rents in respect of any sub-letting, and
therefore if they are going to be hit as the technical owners, they do not
come within the words 'the person for the time being receiving the rack
rent of the premises,' if the top floor is to be dealt with or treated as
separate premises. I entirely agree that they are in receipt of the rack
rent of the house, and that they are liable for any structural defect in the
house as let. Now, the learned magistrate has found this: 'I held that
although the water supply of the said house would have been sufficient if
the said house had been in the occupation of one tenant only, yet the top
floor being let separately, the supply of water was not proper or
sufficient; and I further hold that the want or defect was of a structural
character, and that the appellants were the owners of the said house.'
"I think, with very great deference to the learned magistrate, who I
know is extremely careful, that he has mixed up two things. He has
forgotten, or, rather, has not sufficiently observed, that if he is dealing
with the owners as the owners of the house, they are not the people who
are in receipt of the rack rent of the premises, the top floor, which has
been underlet, or, in other words, while he is quite right in saying that
the appellants are the owners for the purpose of any defect in the water
supply to the house, yet he is not entitled to make what I may call a
constructive house for the purpose of increasing the burden upon the
owner; and that is made I think abundantly clear by the eighth
paragraph, where he says: 'If I was wrong in holding that a nuisance
had been committed upon the whole of the said premises, then the said
top floor, being let as a separate tenement, was an occupied house within
the meaning of section 48.' Now, there is no definition of 'house' as
far as I know, except in section 141, which, if I remember right, says
that 'house' includes schools, factories, and other buildings in which
persons are employed. That, I think, is the only definition.
"I really am at a loss to understand how, remembering the Waterworks
Clauses Act and the Public Health Acts, it can be said that for the
purpose of the obligation of an owner you are to deal with an underlet
room as a house occupied for the purpose of this nuisance question. It
seems to me to be straining technicalities to the last extent to hold that
if, without my consent, my tenant has underlet a room in my house that
that becomes as against me an occupied house, to which I can be called
upon to put a pipe, although the very next moment or the very next day
it may cease to be an occupied house. I think 'occupied house' means